[Cite as In re D.B.,
2017-Ohio-4174.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN RE: D.B. JUVENILE : JUDGES:
:
: Hon. Patricia A. Delaney, P.J.
: Hon. William B. Hoffman, J.
: Hon. John W. Wise, J.
:
: Case No. 2016CA00189
:
:
:
: OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Juvenile Division, Case
No. 2016 JTR 00170
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: June 5, 2017
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
JOHN D. FERRERO, JR. BERNARD L. HUNT
STARK CO. PROSECUTOR 2395 McGinty Rd. N.W.
RENEE M. WATSON N. Canton, OH 44720
110 Central Plaza South, Ste. 510
Canton, OH 44702-0049
Stark County, Case No. 2016CA00189 2
Delaney, P.J.
{¶1} Appellant D.B. appeals from the October 6, 2016 Judgment Entry of the
Stark County Court of Common Pleas, Juvenile Division overruling his objections to the
decision of the magistrate. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} The following facts are adduced from appellant’s trial before the magistrate
and from the crash report and witness statements included in the record. Sometime
around 3:00 p.m. on February 11, 2016, appellant pulled into the parking lot at Roma’s
Radiator Shop in Perry Township, Stark County, Ohio to talk to a friend. The crash report
is included in the record of the case and describes the vehicle appellant was driving as a
black Ford F-250 pickup truck.
{¶3} Joseph Kirkman was at work in the radiator shop when he looked out the
window and saw appellant’s black pickup truck back into the fence. Kirkman ran out to
alert appellant and get his information, but the truck pulled out and Kirkman was only able
to get a partial plate number.
{¶4} Michael Roma Sr., the owner of the property, ran out to try to stop the truck
and someone in the truck said, “I’ve got a gun, you better get back in the building.” Roma
also obtained a partial license plate number.
{¶5} Three fence posts were damaged and Roma obtained an estimate to repair
the damage for $625. Roma testified appellant never contacted him about the property
damage.
{¶6} Someone at Roma’s called Perry police, reported the hit-skip and provided
the vehicle description and partial plate number. Shortly thereafter Ptl. Locy observed a
Stark County, Case No. 2016CA00189 3
vehicle matching the description on Perry Drive and completed a traffic stop. Locy asked
appellant if he hit anything and appellant admitted hitting the fence. Locy told appellant
to return to Roma’s Radiator Shop and followed appellant back to the shop.
{¶7} Another officer, Ptl. Barrett, spoke with appellant at the shop, took
statements, and completed a crash report.
{¶8} Appellant’s written statement says he pulled into Roma’s Radiator shop to
check on a friend in a separate vehicle in the parking lot. They talked for a moment and
appellant “backed out and left unaware that [he] had backed into Roma’s fence.”
{¶9} Ptl. Barrett gave Roma a business card which included the crash report
number.
{¶10} Appellant was charged by Uniform Traffic Ticket (U.T.T.) with one count of
leaving the scene of an accident pursuant to R.C. 4549.021. The case proceeded to trial
before a magistrate and appellant moved for acquittal at the close of appellee’s evidence
and at the close of all of the evidence. The magistrate overruled the motions and
adjudicated appellant a juvenile traffic offender. Appellant objected to the magistrate’s
decision and appellee responded with a memorandum in opposition. On October 6, 2016,
the trial court approved and adopted the magistrate’s decision.
{¶11} Appellant now appeals from the October 6, 2016 decision of the trial court
and raises one assignment of error:
ASSIGNMENT OF ERROR
{¶12} “THE TRIAL COURT’S DECISION FINDING THAT D.B. WAS A JUVENILE
TRAFFIC OFFENDER WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE,
THUS NOT SUPPORTED BY SUFFICIENT EVIDENCE.”
Stark County, Case No. 2016CA00189 4
ANALYSIS
{¶13} Appellant argues his conviction upon one count of leaving the scene of an
accident is against the manifest weight and sufficiency of the evidence because he
returned to the scene under police escort. We disagree.
{¶14} The legal concepts of sufficiency of the evidence and weight of the evidence
are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio St.3d 380,
678 N.E.2d 541, paragraph two of the syllabus. The standard of review for a challenge
to the sufficiency of the evidence is set forth in State v. Jenks,
61 Ohio St.3d 259,
574
N.E.2d 492 (1991) at paragraph two of the syllabus, in which the Ohio Supreme Court
held, “An appellate court’s function when reviewing the sufficiency of the evidence to
support a criminal conviction is to examine the evidence admitted at trial to determine
whether such evidence, if believed, would convince the average mind of the defendant’s
guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the
evidence in a light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime proven beyond a reasonable doubt.”
{¶15} In determining whether a conviction is against the manifest weight of the
evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the
entire record, weighs the evidence and all reasonable inferences, considers the credibility
of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly
lost its way and created such a manifest miscarriage of justice that the conviction must
be overturned and a new trial ordered.” Thompkins, 78 Ohio St.3d at 387. Reversing a
conviction as being against the manifest weight of the evidence and ordering a new trial
Stark County, Case No. 2016CA00189 5
should be reserved for only the “exceptional case in which the evidence weighs heavily
against the conviction.”
Id.
{¶16} A manifest-weight challenge “concerns ‘the inclination of the greater
amount of credible evidence … to support one side of the issue rather than the other.’”
(Emphasis sic.) State v. Montgomery, 148 Ohio St.3d 347,
2016-Ohio-5487,
71 N.E.3d
180, ¶ 75, citing
Thompkins, supra,78 Ohio St.3d at 387, quoting Black's Law Dictionary
1594 (6th Ed.1990). In addressing a manifest-weight argument, we are able to consider
the credibility of the witnesses. State v. McCrary, 10th Dist. Franklin No. 10AP–881,
2011–Ohio–3161, ¶ 13, citing State v. Cattledge, 10th Dist. No. 10AP–105, 2010–Ohio–
4953, ¶ 6.
{¶17} Although sufficiency and manifest weight are different legal concepts,
manifest weight may subsume sufficiency in conducting the analysis; that is, a finding that
a conviction is supported by the manifest weight of the evidence necessarily includes a
finding of sufficiency. State v. Braxton, 10th Dist. Franklin No. 04AP–725, 2005–Ohio–
2198, ¶ 15, citing State v. Roberts, 9th Dist. Lorain No. 96CA006462 (Sept. 17, 1997).
“[T]hus, a determination that a conviction is supported by the weight of the evidence will
also be dispositive of the issue of sufficiency.” Id.
{¶18} Appellant was found guilty upon one count of leaving the scene pursuant to
R.C. 4549.021, which states in pertinent part:
(A)(1) In the case of a motor vehicle accident or collision
resulting in injury or damage to persons or property on any public or
private property other than a public road or highway, the operator of
the motor vehicle, having knowledge of the accident or collision, shall
Stark County, Case No. 2016CA00189 6
stop at the scene of the accident or collision. Upon request of any
person who is injured or damaged, or any other person, the operator
shall give that person the operator's name and address, and, if the
operator is not the owner, the name and address of the owner of that
motor vehicle, together with the registered number of that motor
vehicle, and, if available, exhibit the operator's driver's or commercial
driver's license.
(2) If the operator of the motor vehicle involved in the accident
or collision does not provide the information specified in division
(A)(1) of this section, the operator shall give that information, within
twenty-four hours after the accident or collision, to the police
department of the city or village in which the accident or collision
occurred, or if it occurred outside the corporate limits of a city or
village, to the sheriff of the county in which the accident or collision
occurred.
….
(B)(1) Whoever violates division (A) of this section is guilty of
failure to stop after a nonpublic road accident. Except as otherwise
provided in division (B)(2) or (3) of this section, failure to stop after a
nonpublic road accident is a misdemeanor of the first degree.
….
{¶19} Appellant argues he cannot be a juvenile traffic offender pursuant to the
statute because he returned to the scene within 24 hours of the crash, albeit under police
Stark County, Case No. 2016CA00189 7
escort, and provided his identifying information to police for inclusion in the crash report.
We disagree with appellant’s characterization of his actions and find he did not comply
with the statute.
{¶20} In State v. Hoy, 10th Dist. Franklin No. 02AP-1197, 2003-Ohio-2482, at ¶
16, the Tenth District noted:
Compliance with R.C. 4549.021 may be made in two ways.
Following an accident, the person driving the vehicle causing the
accident shall: (1) stop; (2) if requested, give his name and address,
or the name and address of the vehicle owner, and the registration
number of the vehicle; and (3) show a driver's license if available. In
the alternative, the person driving the vehicle causing the accident
may report the same information to the police department in the city
or village where the accident occurred, or, if the accident occurred
outside the corporate limits, to the sheriff within 24 hours of the
accident. (Emphasis added.)
{¶21} In the instant case, appellant failed to comply with either alternative. After
the crash, he didn’t stop, even when employees of the radiator shop ran out to stop him
and get his information. Moreover, he did not report the crash to Perry police. His
apprehension by Perry police does not absolve appellant of his duty to 1) stop, or 2) report
the crash. His statements to the police in response to their questions, subsequent to the
traffic stop, does not equate to appellant “reporting” the crash. “[Subsection (A)(2)] is not
an affirmative defense, but an alternative method of compliance with the statute and the
failure to comply is an element of the offense.” Hoy, supra, 2003-Ohio-2482 at ¶ 18, citing
Stark County, Case No. 2016CA00189 8
State v. Ginn, 2nd Dist. Montgomery No. 7879,
1982 WL 3873, *3 (December 1, 1982).
In Hoy, the appellate court reversed the defendant’s conviction because the defendant
stopped after the crash and provided his name, place of employment, and registration
number. Id. at ¶ 17. The court cited section B of R.C. 4549.021, stating there was no
evidence the defendant did not make a police report within 24 hours. Id. at ¶ 18. In the
instant case, the police report relied upon by appellant was made not at his instigation but
because he was apprehended shortly after leaving the scene.
{¶22} In another leaving-the-scene case, a defendant made a similar argument:
his only duty was to report the crash to police within twenty-four hours, and because
twenty-four hours had not passed between the time of the crash and his arrest, he could
not be guilty of leaving the scene. The Third District Court of Appeals noted:
Here, it is beyond doubt that a reasonable person in
appellant's position would have interpreted Ms. Hantrwsky's
suggestion that the two drivers go the hotel lobby and call the police
as the “request to furnish … information” described in the first
paragraph of the ordinance. Appellant's refusal to comply with Ms.
Hantrwsky’s suggestion then placed a duty upon him to notify the
police within twenty-four hours. However, the evidence as viewed in
a light most favorable to the State establishes that the defendant had
no intention of reporting the accident at all. When questioned by the
police shortly after the accident, appellant took the position that he
knew nothing about it.
Stark County, Case No. 2016CA00189 9
City of Bellefontaine v. Pierce, 3rd Dist. Logan Nos. 8-2000-
10, 8-2000-11, 2000-Ohio-1836,
2000 WL 1273608, *2 (Sept. 1,
2000).
{¶23} In the instant case, at trial appellant rested without presenting any evidence
on his own behalf. Appellee’s witnesses testified at least two people ran outside when
appellant struck the fence and attempted to get his information; Roma testified a threat
was made to deter his efforts. Upon being traffic-stopped a short distance away, Locy
asked appellant if he hit anything and appellant admitted hitting the fence, although he
the completed a written statement in which he claimed he was unaware he struck the
fence. Sitting as the proverbial “thirteenth juror,” we do not find that the quick
apprehension of appellant by the Perry police absolves him of his duty to provide his
identifying information after the crash.
{¶24} Compare the instant case with that of State v. Kirchner, 15 Ohio Misc. 154,
160–61,
236 N.E.2d 236, 240 (C.P.1968):
… [I]t affirmatively appears that the conduct and actions of
the accused in following through as he did brought the matter to the
attention of the police. It should have been obvious that the accused
did not hit and skip. He was taking care of the damages while being
investigated. He did not skip to avoid criminal prosecution for any
crime that may have been alleged to have been committed in the
operation of his vehicle. He was always available to have been so
charged.
Stark County, Case No. 2016CA00189 10
{¶25} In the instant case, appellant’s conviction upon one count of leaving the
scene is supported by sufficient evidence and is not against the manifest weight of the
evidence because appellant’s conduct established he did not bring the crash to the
attention of police. He fled the parking lot after hitting the fence, threatening a witness as
he did so, made no effort to take care of the damage he caused, and was “available” to
police only because the apprehended him a short distance away based upon witnesses’
descriptions of the truck.
{¶26} Appellant’s sole assignment of error is overruled.
CONCLUSION
{¶27} Appellant’s sole assignment of error is overruled and the judgment of the
Stark County Court of Common Pleas, Juvenile Division is affirmed.
By: Delaney, P.J.
And Wise, John, J., concur
Hoffman, J., concurs separately
Stark County, Case No. 2016CA00189 11
Hoffman, J., concurring
{¶28} I concur in the majority’s disposition of Appellant’s sole assignment of error.
{¶29} I write separately because I disagree with the majority’s conclusion
Appellant failed to comply with the second “alternative” of R.C. 4549.021, i.e., failing to
report the accident within 24 hours. I find no violation of that alternative can occur prior to
passage of 24 hours after the accident.
________________________________
HON. WILLIAM B. HOFFMAN
